Strict new driving rules and demerit system for South Africa declared lawful

The Constitutional Court has declared that South Africa’s strict Administrative Adjudication of Road Traffic Offences (Aarto) Act is valid and constitutionally sound.

On Wednesday (12 July), the Concourt ruled that the Aarto legislation is constitutionally valid and thus legal, dismissing civil action group Outa’s legal challenge to the law.

Outa had brought an application calling on the Concourt to confirm the Pretoria High Court’s judgment of November 2022 that the Aarto legislation was unconstitutional and invalid.

The disputed legislation is the Aarto and the Aarto Amendment Act of 2019, which brought certain aspects of the Aarto Act into effect.

The Aarto Act has been in effect in some cities in South Africa – specifically Johannesburg and Pretoria – for some time, but the amendments allow the system to be launched across the country.

The Concourt judgment was written by Chief Justice Raymond Zondo and was unanimous.

The Concourt disagreed with Outa’s position that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution, preventing local and provincial governments from regulating their own affairs.

The Concourt did not make a costs order, which means that the parties will pay their own legal costs.

Outa has been vocal for many years about Aarto, which the group believes will not effectively address the epidemic of road traffic fatalities and injuries.

“We are disappointed with the Concourt’s decision but abide by the apex court’s ruling. Outa believes that measures to improve road safety and reduce fatalities are urgently needed. However, we don’t believe that the Aarto Acts will achieve this; it’s just not practically possible.

“South Africa needs effective processes enabled by fair adjudication that comply with the Constitution,” said Advocate Stefanie Fick, Outa Executive Director.

Outa is of the opinion that the Aarto legislation results in troublesome and complex issues for most motorists and motor vehicle owners and is concerned that this legislation will not achieve the principal purpose of enhancing road safety.

Outa said that the Aarto Amendment Act will bring higher penalties, tedious and expensive procedures to be followed by the public, and a total lack of prescription on visible policing – and so will have little or no effect on improving road safety in South Africa, it said.

It added that the laws will also face practical challenges due to a lack of enforcement, a lack of administrative discipline, and a variety of problems in the management of vehicle and driver licencing.

“Merely legislating policy doesn’t make it rational or workable. Governments often suffer from the false belief that if the laws and regulations are in place, the people will simply comply,” Fick said.

“Irrational and or impractical laws and a lack of transparency results in pushback from society, making systems ungovernable. The sad reality is that government begins to suffer from a crisis of legitimacy when it cannot exercise its power over people by effectively enforcing its legislation and policies,” she said.

What Aarto means for drivers

The key change to South Africa’s road laws through the Aarto would be the introduction of a demerit system whereby a person, operator or company (juristic person) pays the penalty and incur points when a traffic infringement is committed.

Drivers will start with zero points and will “earn” demerit points as and when applicable through the Aarto process, where demerit points are allocated.

Currently, the threshold is a maximum of 12 points, with the proposed amendments recommending 15 points. From point 13, the various sanctions of suspension or cancellation of a driving licence will occur, as defined in the Aarto legislation.

The laws also make provision for new offences to be added, even those relating to admin, such as failing to update addresses.

Read: D-day for South Africa’s strict new driving rules coming soon